A news story broke a few weeks ago informing that the German Justice Ministry drafted legislation which will require mothers in paternity cases to reveal who they had slept with. This move was apparently in response to a court ruling in 2015 in which a man sued his wife after she admitted he might not be the biological father of their child. The man tried to force his wife to reveal to him the name of her former lover, however, the woman successfully appealed to the constitutional court, which then ruled that there was no law in Germany under which the woman was obliged to disclose such information. However, the judge in the case stated in the ruling that that new legislation on the issue would be welcome.
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The law when passed will oblige the mother of a child to name “the man who was present at the time of conception”, on the request of a partner or ex-husband who is paying child maintenance and support. In terms of the law a mother would only have the right to remain silent if she had very good reasons not to name the real biological father, and a court would determine whether this was indeed the case. The idea behind such a law is that it will enable a man who has erroneously been paying child maintenance and support to recover what he has paid from the true father of the child.

The law has been named the “Cuckoo Kids’ Law” in the German media, after the German phrase for children conceived in adultery, “cuckoo children”.

So, the question is, will it be a good idea to have such a law in South Africa?

In doing some research it is obvious that paternity fraud is a worldwide problem. For example, it was reported that, in California, there was a 20% chance that a child born to a married couple was not the biological child of the husband and in a contested paternity hearing, there was a 33% chance that the alleged father was not the natural father. A 2005 review of studies into so-called paternal discrepancy published in the British Medical Journal found that the rate was around 4% meaning 1 in 25 children is biologically fathered by someone other than the man who believes he is the father. A study in America found that more than 95% of woman would not tell a man that the child wasn’t his.

It is therefore clear that one can agree on two issues: firstly, that it is best in most cases that a child knows the true identity of his or her father and that a law along the lines anticipated in Germany would reduce that 1 in 25 figure. Secondly, it is unfair that a man is obliged to pay maintenance for a child that is not his, in circumstances where the mother conceals the fact that he is not the father. Once the mother discloses that the man paying child maintenance is not the child’s biological father, then he is no longer obliged to pay, and he can seek reimbursement for the child maintenance that he already paid.

If a mother knowingly conceals the paternity of her child, she could be convicted of paternity fraud. She could be criminally prosecuted, although proceeding in this way this could have a negative impact on the best interests of the child, who loves and cares for his or her mother.
 
South Africa

I have been involved in a few matters where fathers mistakenly supported another man’s child. Although there have not been a lot of reported cases on paternity fraud in our law journals the wronged father, the biological father and the child could in fact all have legal claims against the mother.

For example, the father who was deceptively led to believe that he was the father will have a monetary claim against the mother for all the money that he has spent and paid on behalf of the child from birth, which include the child’s education costs, medical expenses and daily living expenses. He will also have a claim for damages against the mother, for pain and suffering caused by pretending that he is the child’s biological father.

The true biological father of a child will also have a damages claim against the mother for intentionally not disclosing that he had a child. The child, who established a healthy father-child relationship with a man who is not his or her biological father also has a claim for damages against the mother.
A woman whose deception is proved in such cases has very little room to manoeuvre. The only defence for such a mother would be that she was not aware that her partner was not the biological father of the child. If she can prove that she was not aware of this fact, it will be very difficult for any damages claims to be brought successfully against her.

Paternity tests are necessary when a mother denies these claims and difficulty arises when the mother of the child refuses to grant a paternity test. This can create huge problems as our law is somewhat unclear in these cases.

Legislation

The South African Children’s Act confirms in Section 36 a presumption in respect of a child born out of wedlock (parties who were not married to each other). The presumption is that the person whom had sexual intercourse with the mother at any time when that child could have been conceived will be presumed to be the biological father of the child in the absence of evidence to the contrary which raises reasonable doubt.

Section 37 of our Children’s Act states that if a person in proceedings in which paternity of a child is challenged refuses to submit him/herself, or the child, to take blood samples in order to carry out a scientific test to prove the paternity of the child, then a presumption in our law exists in which the failure of such a party to agree to such a test may be used as evidence to prove the contrary. The effect of this section is that it compels a court to warn the person who has refused to have his/her or the child’s blood sample taken ‘of the effect’ which such refusal might have on his/her credibility. The problem is that the section does not go far enough and does not resolve the main issue, namely the truth about the paternity of the child.

A year ago there was a report in the US of twins who was born with different fathers. What happened here was that two eggs from the same mother were fertilised by sperm from two different men during separate acts of sexual intercourse within the same ovulation period. In such a case the presumption mentioned above would not be helpful.

So, in summary as our law stands one cannot be compelled to take a paternity test.

Cases

In 2012, a woman was arrested in KwaZulu Natal after a mother told a Durban regional court magistrate that she had handed over R65 000 to the woman who was a Facebook friend she had never met who was supposed to be helping her to manipulate a paternity test. The woman pleaded guilty to five charges of fraud, forgery, uttering, extortion and crimen injuria and was sentenced to 5 years’ imprisonment.

The basis of a paternity matter is that the applicant will have to show that such a test would be in the best interest of the child. In 2010 in the case of YM v LB 2010 ZASCA 106 our Supreme Court of Appeal (SCA) was given an opportunity to provide judicial clarity on the law relating to court-ordered blood testing of potential parents refusing to voluntary submit themselves (and/or the minor child) to such testing, but the Court most unfortunately elected to side-step the issue based on the facts of the matter. The SCA found that where the paternity of the child has been shown on a balance of probabilities, scientific tests on a child should not be ordered. In this matter paternity was not really in dispute as both parties (at various times before the attorneys joined the show) believed that the man in question was the father of the child. The SCA also noted that the rights of privacy and bodily integrity may be infringed if it is in the best interests of the child. However, it confirmed the statement made by a judge in an earlier case that it may not always be in an individual’s best interest to know the truth. The court noted that in some cases it may be justified to order tests, but that the discovery of the truth should not be generalized.

The unreported case of Nel v Jonker (WCHC) case number A653/2009 was the first reported judgment dealing specifically with misattributed paternity. The ex-husband had regarded the child, born four months into his marriage with the mother, as his biological child and had maintained her as such. Only 16 years after the birth, and 10 years after the divorce, did he discover through DNA testing that the child had actually been fathered by another man. The maintenance court varied the divorce order by deleting his (future) maintenance obligations towards the child since he was not the biological father of the child. The court of first instance subsequently awarded damages to the cuckolded ex-husband for the R50 000 that he paid towards the child’s maintenance since the divorce. This order was taken on appeal. On appeal the Judge overturned the damage award that the maintenance court granted to the ex-husband. The Judge found that the ex-husband did not meet all the requirements of the claim, specifically, his error in paying maintenance was found to be unreasonable and that there was no proof that the mother of the child was enriched by the maintenance payments. The reading of the case leaves one with a feeling of dissatisfaction because the set of facts was not ideal to deal with this complex issue, and partly because of the fact that the pleadings and evidence were deficient, making a precedential judgment on misattributed paternity impossible.

Personally I believe that there should be a law in forcing a mother to name the real father of a child if paternity comes into question.

The question as to when the value of accrual should be determined in a divorce was finally settled by the Supreme Court of Appeal in the matter of Brookstein v Brookstein.

The issue in this case was whether the value of an accrual should be determined, ie, at the close of pleadings, or at the dissolution of the marriage, either by death or by divorce.

The provisions of the Matrimonial Property Act 88 of 1984 (the MPA) are clear and unambiguous. In terms of s 3 thereof, a spouse acquires a right to claim an accrual at the ‘dissolution of a marriage’. An exception arises in terms of s 8 of the MPA. In terms of this section, a spouse is entitled to approach the court for immediate division of the accrual, where his or her right to share in it at dissolution of the marriage ‘will probably be seriously prejudiced by the conduct or proposed conduct of the other spouse’. It is only then that the date for determination of an accrual is brought forward, instead of at ‘dissolution of the marriage’. Furthermore, in terms of s 4 of the MPA the net value of the accrual of the estate of a spouse is determined at the dissolution of the marriage.

This issue has given rise to dissenting decisions in two lines of cases in the high court. The one view is that the correct date upon which the accrual must be determined is at the stage of litis contestatio, (the close of the pleadings) whereas the other view is that this must be calculated at the date of dissolution of the marriage. In MB v NB 2009 ZAGPJHC 76; 2010 (3) SA 220 (GSJ) Brassey AJ held that although s 3 establishes the moment at which the contingent right possessed by a spouse becomes perfected i.e., at the dissolution of the marriage, it does not establish the moment by reference to which the respective estates of the parties must be assessed. The learned acting judge was of the view that the problem was one of procedure, not substance, and owed its origin to the fact that litigation takes time to complete. In his view, the established principle was that the operative moment was litis contestatio, for that was the moment when the dispute crystallises and can be presented to court for decision. The view in MB v NB was followed in the case of MB v DB [2013] ZAKZDHC 33; 2013 (6) SA 86 (KZD) and KS v MS [2015] ZAKZDHC 43; 2016 (1) SA (64) (KZD).

However, in JA v DA 2014 (6) SA 233 (GJ) Sutherland J correctly pointed out at para 11 that the views of Brassey AJ were obiter and disagreed with the view that the date of the close of pleadings is the date upon which to determine the content and value of the estates. In his view, that date was irrelevant for this exercise and the date of dissolution was the only relevant date upon which to calculate the respective estates. Because the event of litis contestatio was purely procedural, it had no bearing on the definition of, or identification of any alleged right which was the subject of litigation, nor had it any bearing on the determination when, by operation of law, or upon any given facts any right comes into being.

Sutherland J then stated the following at para 17:
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‘When, as in this case, a claim is based on the existence of a right and the claim is for a performance measured by value it is not possible to calculate that value at a moment prior to the coming into existence of the right.’

The SCA found that the view of Sutherland J that the time when the right comes into existence is determinative of the calculation of the value of that right is undoubtedly jurisprudentially correct. The court did not agree with the view expressed in Le Roux v Le Roux (2010) JOL 26003 (NCK) which was followed in KS v MS that this conclusion will result in a piecemeal adjudication of issues resulting in further litigation between the parties. This view was based upon the proposition that a litigant would have to engage in two distinct actions. The first would be for a divorce and the second for an order in terms of s 3 of the MPA. The SCA agreed, however, with the view of Sutherland J that it would not be inappropriate to sue for both a divorce and an order pursuant to s 3 of the MPA in a single action, in which the accrual order is made dependent upon the grant of a divorce order.

The SCA further found that the other problems averted to by Brassey AJ and Sutherland J which may result from this determination of the date upon which the accrual must be calculated, cannot obscure what is the clear meaning of the Act. As stated in  Natal Joint Municipal Pension Fund v Endumeni Municipality [2012] ZASCA 13 2012 (4) SA 593 (SCA) para 18:

‘Judges must be alert to, and guard against, the temptation to substitute what they regard as reasonable, sensible or businesslike for the words actually used. To do so in regard to a statute or statutory instrument is to cross the divide between interpretation and legislation. . .’

Consequently, MB v NB and MB v DB as well as KS v MS which held that the date for determination of accrual is at litis contestatio rather than at the dissolution of marriage, were wrongly decided.